USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 75 of 80
Consultancy, Inc. v. U.S. ex rel. Hunt, 139 S. Ct. 1507, 1512 (2019) (“In all but the most unusual situations, a single use of a statutory phrase must have a fixed meaning.”). And as explained above, the ordinary meaning of “sex” when Congress enacted Title IX turned on reproductive function. That Congress did not define “sex” does not change this conclusion. See United States v. Sepulveda, 115 F.3d 882, 886 n.9 (11th Cir. 1997) (“[A] statute is not ambiguous merely because it contains a term without a statutory definition.”). And under the unambiguous meaning of “sex” in the safe-harbor provision, the Board did not violate Title IX when it prohibited Adams from using the boys’ bathroom.
Instead of grappling with the meaning of “sex,” the now-vacated majority opinion abdicated its duty to interpret the law. According to that opinion, it is unnecessary to delve into the meaning of “sex” in Title IX because the safe harbor “does not dictate how schools should approach transgender students’ restroom use.” Vacated Majority Op. at 42. But courts regularly apply general standards of law to particular facts, and the Board asks this Court to apply the safe-harbor provision to the facts in this appeal. By declaring it not “necessary” to interpret the safe-harbor provision, the majority abandoned statutory interpretation in favor of legislating a transgender exception to the safe-harbor provision. This approach offends basic principles of statutory interpretation. See Scalia & Garner, Reading Law § 8, at 93 (“The principle that a matter not covered is not covered is so
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